Robledo Response to Motion to Dismiss - Surviving Spouses ...

granting of relief” under the specific enumerated statutory sections. 6
Significantly, Congress
omitted from this list § 1151, which defines “immediate relative,” and § 1154(1)(a), which
authorizes the filing of a petition for “immediate relative” classification. Under the canon of
statutory construction expressio unis, exclusio alterius, the statute’s jurisdictional bar does not
apply to judicial review of Defendants’ unlawful interpretation of 8 U.S.C. § 1151. See
Anderson v. XYZ Correctional Health Servs, Inc., 407 F.3d 674, 680 (4th Cir. 2005).
Plaintiffs’ challenge implicates neither a “judgment” nor the sections enumerated in §
1252(a)(2)(B)(i). Importantly, Defendants’ subsequent reliance on its unlawful denial of the I-
130 petitions to deny the I-485 applications and to initiate removal proceedings does not bring
Plaintiffs’ challenge of that prior act within the ambit of § 1252. See Obioha, 431 F.3d at 406
(“[a] reviewing court, therefore, must examine the basis for the BIA’s decision rather than the
end result of the BIA’s decision to determine whether the decision is ‘under’ a section . . . that
precludes judicial review.”) (quoting Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999)).
Accordingly, § 1252(a)(2)(B)(i) is no bar to judicial review by this Court of Plaintiffs’ claims.
Section 1252(a)(2)(B)(ii) bars judicial review only of discretionary decisions and,
similarly, is no bar to this Court’s jurisdiction. Specifically, that section provides that the
jurisdictional bar applies to any decision or act that is assigned under 8 U.S.C. §§ 1151-1378
6 Those enumerated sections are § 1182(h) and (i), providing authority to issue waivers
for convictions for illegal drug possession and for fraud and misrepresentation; § 1229(b)
providing authority to cancel removal proceedings for certain groups including battered spouses;
§ 1229(b) providing authority to allow voluntary departure in lieu of deportation; and § 1255
providing for adjustment of status to permanent residence.
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